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GINSBURG AND THE CHICAGO SCHOOL OF THOUGHT

<i> David M. O'Brien, professor of government at the University of Virginia, is currently a visiting fellow in constitutional studies at Oxford University. He is author of "Storm Center: The Supreme Court in American Politics" (Norton)</i>

Whatever the reverberations from a weekend of charge and countercharge over the nomi nation of Judge Douglas H. Ginsburg to the U.S. Supreme Court, the man’s law school philosophy may be forgotten amid allegations related to marijuana-smoking, missing records and inflation of prior courtroom experience.

But philosophy is what should matter. Reagan justice has always been about two things: pushing the New Right’s social agenda on abortion and affirmative action, and promoting the old guard’s corporate interests by infusing law with a free-market philosophy. The President has failed so far to deliver the first. But until the two most recent bitter Supreme Court battles, he had huge success with the second--in the Justice Department’s enforcement policies and in selection of federal judges. That economic agenda was behind the latest nomination.

The profound controversy over Ginsburg is different from, though related to, what led the Senate to reject Judge Robert H. Bork by a resounding 58-to-42 vote. Both men came from the same law school and the same philosophy. For Bork an essential issue was race--could he be trusted not to turn back the constitutional clock on civil liberties and civil rights? For Ginsburg the big issue should have been big business--would he bring back trusts and monopolies and how far would he go with his economic analysis in constitutional law?

Ginsburg shares with Bork more than a nomination and a seat on the District of Columbia Circuit Court of Appeals. He is Bork’s protege, 20 years younger but tracking the same path--years at the University of Chicago Law School where both adopted the theories of its economic approach.

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Chicago is the only law school in the United States known for promoting its own particular perspective: It teaches that law is best understood in light of economic theories and basic techniques such as cost-benefit analysis. In other words, legal principles or rights should be applied, or eliminated, when costs outweigh benefits.

This philosophy ultimately furthers conservative economic interests. And, not surprisingly, over the years Chicago graduates have been attracted to businesses and corporate law firms attacking government regulation. They now possess enormous influence within the government itself, since the Chicago school of thought serves the Reagan Administration’s conservative economic instincts.

Bork once attributed his “conversion” at Chicago to Aaron Director, now at the Hoover Institution, Stanford’s conservative think tank. In the 1950s, as the first economist to teach in the Chicago school, Director helped pioneer the economic approach to law--rigorously attacking New Deal regulation and antitrust enforcement for hurting corporations. His brother-in-law, University of Chicago economist Milton Friedman, is even better known for championing free-markets.

Bork later emerged in the vanguard, arguing that big business is not bad. More than his sharp criticism of the court’s rulings on civil liberties, Bork advanced his career and the movement with economic-based articles and his book “The Antitrust Paradox.” He did so by carrying Director’s theses to the conclusion that antitrust law is at war with itself; it results in inefficiencies when corporations are treated as consumers in an economic analysis of antitrust law.

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Chicago’s reputation was well established by 1970, when Ginsburg entered. He too took up its banner and followed Bork into the field of antitrust. During almost a decade of teaching at Harvard Law School, Ginsberg won modest attention for his critiques of regulation, such as automobile safety standards, which he claimed “stifled innovation.”

A host of the Chicago school’s advocates have been named by Reagan to the federal bench, in the expectation that they would apply big-business analysis to the law. Besides Bork and Ginsburg, there is Justice Antonin Scalia, appointed last year to the Supreme Court, and several appellate court judges--notably, Danny J. Boggs, Frank H. Easterbrook, Richard A. Posner, Bernard H. Siegan and Ralph K. Winter.

Still others have filled the lower ranks of the Justice Department and the offices of legal counsel for administrative agencies. Ginsburg signed on in 1983, as assistant attorney general in the Antitrust Division. There he quickly became known for moving in the direction long advocated by Bork and others of the Chicago school. Ginsburg stood for industrial deregulation, sided with corporations in opposing antitrust constraints on businesses in world markets and approved large corporate mergers. In 1985 he was promoted to chief of the division and a year later rewarded with a judgeship.

What makes Chicago’s law-and-economics analysis so controversial is not its pro-big business stance. More unsettling to legal scholars, it promotes conservative judicial activism--judges rewriting statutes passed by Congress. Under the Clean Air Act, for instance, the Environmental Protection Agency must regulate carcinogens and “provide an ample margin of safety to protect the public health.” In a recent suit challenging EPA’s refusal to regulate vinyl chloride, a carcinogen produced by the plastics industry, Reagan judges on the District of Columbia circuit upheld the agency on the grounds that the cost of regulation was unreasonable. Congress’s statutory standard for public safety was thus replaced by cost-benefit analysis.

Even more disturbing, the law-and-economics movement opposes traditional constitutional analysis and would make rights depend on cost-benefit calculations. Some of the Chicago school’s leading stars openly debunk the idea of judicial self-restraint and respect for precedent.

Posner, for one, argues that the Supreme Court’s abortion ruling ought to be overturned. He does so not in the tradition of constitutional debate but on simple economics. It would be more economically productive, he says, for women to have unwanted babies and sell them on the open market. Recently, in the New Republic, Posner ridiculed even Reagan-supporters for harping about strict constructionism and mythical reliance on the Founding Fathers’ “original intention.” Judges indeed have discretion in constitutional interpretation--that’s what these confirmation fights are about.

Thus Ginsburg’s nomination--allegations aside--had to widen divisions between traditional conservatives (in both parties) and the Reagan Administration. That was why Bork was opposed by old-time Republicans, like Chicago law professor Philip B. Kurland and Washington lawyer William J. Coleman--two former clerks of the great champion of judicial self-restraint, Justice Felix Frankfurter. They favor conservative economic policies--but set by Congress, not imposed by judges rewriting laws according to their own agendas.

Embrace of the Chicago school is, nonetheless, one reason why Bork joined Atty. Gen. Edwin Meese III in pressuring Reagan to name Ginsburg over the less controversial conservative Judge Anthony M. Kennedy of the U.S. 9th Circuit Court of Appeals. Other secondary considerations came into play as well. Since Ginsburg has written virtually nothing outside the area of antitrust (and only 20 opinions since becoming a judge), he was not expected to provoke the kind of outcry that dogged Bork and would have been raised against some others, such as Easterbrook or Posner. In addition to Ginsburg’s being relatively unknown, the Administration had figured that his youth--age 41--and the fact that he is Jewish would have been useful in deflecting opposition. The White House also bet that Democrats would have been hurt in the polls by going after him.

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The latest battle has been as nasty as the one over Bork. The issue of race was behind the debate over Bork’s views on privacy and whether the Constitution is a “living document.” It was what turned moderate Republicans and conservative Southern Democrats against him. Free-market economics should have been the issue behind the battles over Ginsburg’s lack of judicial experience and how he would approach the great constitutional issues. That debate still deserves national attention however the Ginsburg situation is resolved; and that debate, along with the disgruntled New Right, may haunt the Republican Party in the next election.


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